Philip Floyd v. MMWKM Advisors, LLC, Series ERD I and Elias Dragon ( 2022 )

Order entered November 29, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01147-CV
PHILIP FLOYD, Appellant
V.
MMWKM ADVISORS, LLC, SERIES ERD I AND ELIAS DRAGON,
Appellees
On Appeal from the 471st Judicial District Court
Collin County, Texas
Trial Court Cause No. 471-02423-2021
ORDER
This appeal follows the trial court’s confirmation of an arbitration award.
On August 2, 2022, the day after the trial court signed the order of confirmation,
appellant filed a request for findings of fact and conclusions of law. See TEX. R.
CIV. P. 296 (request due within twenty days of judgment). The trial court failed to
file the requested findings and conclusions within twenty days as required by rule
297 of the rules of civil procedure, see id. 297, and, on August 29, 2022, appellant
filed a notice of past due findings and conclusions, see id. (past-due notice due
within thirty days of original request). To date, the trial court has not filed any
findings and conclusions, and appellant now moves to abate the appeal and direct
the trial court to do so. Appellees oppose the motion by response filed November
28, 2022.
When, as here, the appealed order recites the trial court considered evidence,
and a request for findings of fact and conclusions of law and past-due notice are
timely filed, the trial court must file written findings and conclusions. See id. 296,
297; Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); see also
Phillips v. McNeill, 635 S.W.3d 620, 625 (Tex. 2021). Accordingly, we GRANT
appellant’s motion and ORDER the Honorable Andrea K. Bouressa, Presiding
Judge of the 471st Judicial District Court, to make findings of fact and conclusions
of law in accordance with Texas Rule of Civil Procedure 297 no later than
December 9, 2022. We further ORDER any request for specified additional or
amended findings or conclusions be made by December 19, 2022 and any
additional or amended findings and conclusions, or written verification additional
findings are not appropriate, be filed by December 29, 2022. The trial court’s
findings of fact and conclusions of law, any request for additional or amended
findings and conclusions, and any additional or amended findings and conclusions
or verification shall be filed in a supplemental clerk’s record with this Court no
later than January 6, 2023.
We DIRECT the Clerk of this Court to send a copy of this order by
electronic transmission to Judge Bouressa; Collin County District Clerk Lynne
Finley; and, the parties.
We ABATE the appeal to allow the trial court an opportunity to comply
with this order. The appeal will be reinstated no later than January 13, 2023.
/s/ BONNIE LEE GOLDSTEIN
JUSTICE